[Federal Register Volume 83, Number 67 (Friday, April 6, 2018)]
[Rules and Regulations]
[Pages 14749-14751]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-07056]


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DEPARTMENT OF JUSTICE

28 CFR Part 16

[CPCLO Order No. 001-2018]


Privacy Act of 1974; Implementation

AGENCY: Federal Bureau of Investigation, United States Department of 
Justice.

ACTION: Final rule.

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SUMMARY: The Federal Bureau of Investigation (FBI), a component of the

[[Page 14750]]

United States Department of Justice (DOJ or Department), is finalizing 
without change its Privacy Act exemption regulations for the system of 
records titled, ``FBI Online Collaboration Systems,'' JUSTICE/FBI-004, 
which were published as Notice of Proposed Rulemaking (NPRM) on 
December 4, 2017. Specifically, the FBI exempts the records maintained 
in JUSTICE/FBI-004 from one or more provisions of the Privacy Act. The 
exemptions are necessary to avoid interference with the FBI's law 
enforcement and national security functions and responsibilities. The 
Department received only one substantive comment on the proposed rule.

DATES: This final rule is effective May 7, 2018.

FOR FURTHER INFORMATION CONTACT: Katherine M. Bond, Assistant General 
Counsel, Privacy and Civil Liberties Unit, Office of the General 
Counsel, FBI, Washington DC, telephone 202-324-3000.

SUPPLEMENTARY INFORMATION: 

Background

    On December 4, 2017, the FBI published in the Federal Register a 
System of Records Notice (SORN) for an FBI system of records titled, 
``FBI Online Collaboration Systems,'' JUSTICE/FBI-004, 82 FR 57291. On 
the same day, the FBI published a Notice of Proposed Rulemaking (NPRM) 
proposing to exempt records maintained in JUSTICE/FBI-004 from certain 
provisions of the Privacy Act pursuant to 5 U.S.C. 552a(j) and (k), and 
inviting public comment on the proposed exemptions. 82 FR 57181. The 
comment period was open through January 3, 2018. DOJ received only one 
substantive comment responsive to the proposed exemptions. That comment 
supported the proposed exemptions in order to protect the safety of law 
enforcement officers and better enable them to conduct their 
investigations. After consideration of this public comment, exemptions 
necessary to protect the ability of the FBI properly to engage in its 
law enforcement and national security functions have been codified in 
this final rule as proposed in the NPRM.

Response to Public Comments

    In its Online Collaboration Systems NPRM and SORN, both published 
on December 4, 2017, the Department invited public comment. The comment 
periods for both documents closed January 3, 2018. The Department 
received six total comments, only one of which contained any substance 
related to the SORN or NPRM. The one responsive comment received stated 
that the submitter agreed the exemptions proposed in the NPRM are 
needed for effective law enforcement. The FBI has considered, and 
agrees with, this comment. Because no other responsive comments were 
submitted, and because the FBI continues to assert the rationales in 
support of the exemptions as stated in the NPRM, the FBI adopts in this 
final rule the exemptions and rationales proposed in the NPRM.

Executive Orders 12866 and 13563--Regulatory Review

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review'' section 1(b), 
Principles of Regulation, and Executive Order 13563 ``Improving 
Regulation and Regulatory Review'' section 1(b), General Principles of 
Regulation.
    The Department of Justice has determined that this rule is not a 
``significant regulatory action'' under Executive Order 12866, section 
3(f), and accordingly this rule has not been reviewed by the Office of 
Information and Regulatory Affairs within the Office of Management and 
Budget pursuant to Executive Order 12866.

Regulatory Flexibility Act

    This rule will only impact Privacy Act-protected records, which are 
personal and generally do not apply to an individual's entrepreneurial 
capacity, subject to limited exceptions. Accordingly, the Chief Privacy 
and Civil Liberties Officer, in accordance with the Regulatory 
Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by 
approving it certifies that this regulation will not have a significant 
economic impact on a substantial number of small entities.

Executive Order 13132--Federalism

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

Executive Order 12988--Civil Justice Reform

    This regulation meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate 
drafting errors and ambiguity, minimize litigation, provide a clear 
legal standard for affected conduct, and promote simplification and 
burden reduction..

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    This rule will have no implications for Indian Tribal governments. 
More specifically, it does not have substantial direct effects on one 
or more Indian tribes, on the relationship between the Federal 
government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal government and Indian tribes. 
Therefore, the consultation requirements of Executive Order 13175 do 
not apply.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of 
$100,000,000, as adjusted for inflation, or more in any one year, and 
it will not significantly or uniquely affect small governments. 
Therefore, no actions were deemed necessary under the provisions of the 
Unfunded Mandates Reform Act of 1995.

Congressional Review Act

    This rule is not a major rule as defined by 5 U.S.C. 804 of the 
Congressional Review Act.

Paperwork Reduction Act

    This rule imposes no information collection or recordkeeping 
requirements.

List of Subjects in 28 CFR Part 16

    Administrative practice and procedure, Courts, Freedom of 
information, Privacy Act.

    Pursuant to the authority vested in the Attorney General by 5 
U.S.C. 552a and delegated to me by Attorney General Order 2940-2008, 28 
CFR part 16 is amended as follows:

PART 16--PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION

0
1. The authority citation for part 16 continues to read as follows:

    Authority: 5 U.S.C. 301, 552, 552a, 553; 28 U.S.C. 509, 510, 
534; 31 U.S.C. 3717.

Subpart E--Exemption of Records Systems Under the Privacy Act

0
2. Amend Sec.  16.96 by adding paragraphs (x) and (y) to read as 
follows:

[[Page 14751]]

Sec.  16.96  Exemption of Federal Bureau of Investigation Systems-
limited access.

* * * * *
    (x) The following system of records is exempt from 5 U.S.C. 
552a(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), 
(4)(G), (H), and (I), (5), and (8); (f); and (g):
    (1) The FBI Online Collaboration Systems (JUSTICE/FBI-004).
    (2) These exemptions apply only to the extent that information in 
this system is subject to exemption pursuant to 5 U.S.C. 552a(j) or 
(k). Where the FBI determines compliance with an exempted provision 
would not appear to interfere with or adversely affect interests of the 
United States or other system stakeholders, the FBI in its sole 
discretion may waive an exemption in whole or in part; exercise of this 
discretionary waiver prerogative in a particular matter shall not 
create any entitlement to or expectation of waiver in that matter or 
any other matter. As a condition of discretionary waiver, the FBI in 
its sole discretion may impose any restrictions deemed advisable by the 
FBI (including, but not limited to, restrictions on the location, 
manner, or scope of notice, access or amendment).
    (y) Exemptions from the particular subsections are justified for 
the following reasons:
    (1) From subsection (c)(3), the requirement that an accounting be 
made available to the named subject of a record, because this system is 
exempt from the access provisions of subsection (d). Also, because 
making available to a record subject the accounting of disclosures from 
records concerning him/her would specifically reveal any law 
enforcement or national security investigative interest in the 
individual by the FBI or agencies that are recipients of the 
disclosures. Revealing this information could compromise ongoing, 
authorized law enforcement and intelligence efforts, particularly 
efforts to identify and defuse any potential acts of terrorism or other 
potential violations of criminal law. Revealing this information could 
also permit the record subject to obtain valuable insight concerning 
the information obtained during any investigation and to take measures 
to circumvent the investigation (e.g. destroy evidence or flee the area 
to avoid investigation).
    (2) From subsection (c)(4) notification requirements because this 
system is exempt from the access and amendment provisions of subsection 
(d) as well as the accounting disclosures provision of subsection 
(c)(3). The FBI takes seriously its obligation to maintain accurate 
records despite its assertion of this exemption, and to the extent it, 
in its sole discretion, agrees to permit amendment or correction of FBI 
records, it will share that information in appropriate cases.
    (3) From subsections (d)(1), (2), (3), and (4); (e)(4)(G) and (H); 
(e)(8); (f); and (g) because these provisions concern individual access 
to and amendment of law enforcement and intelligence records and 
compliance with such provisions could alert the subject of an 
authorized law enforcement or intelligence activity about that 
particular activity and the investigative interest of the FBI and/or 
other law enforcement or intelligence agencies. Providing access rights 
could compromise sensitive law enforcement information, disclose 
information that could constitute an unwarranted invasion of another's 
personal privacy; reveal a sensitive investigative or intelligence 
technique; provide information that would allow a subject to avoid 
detection or apprehension; or constitute a potential danger to the 
health or safety of law enforcement personnel, confidential sources, 
and witnesses. The FBI takes seriously its obligation to maintain 
accurate records despite its assertion of this exemption, and to the 
extent it, in its sole discretion, agrees to permit amendment or 
correction of FBI records, it will share that information in 
appropriate cases with subjects of the information.
    (4) From subsection (e)(1) because it is not always possible to 
know in advance what information is relevant and necessary for law 
enforcement and intelligence purposes. Relevance and necessity are 
questions of judgment and timing. For example, what appears relevant 
and necessary when collected ultimately may be deemed unnecessary. It 
is only after information has been fully assessed that its relevancy 
and necessity in a specific investigative activity can be determined.
    (5) From subsections (e)(2) and (3) because application of these 
provisions requiring collection directly from the subject individuals 
and informing individuals regarding information to be collected about 
them could present a serious impediment to efforts to solve crimes and 
improve national security. Application of these provisions could put 
the subject of an investigation on notice of the existence of the 
investigation and allow the subject an opportunity to engage in conduct 
intended to obstruct or otherwise impede that activity or take steps to 
avoid apprehension.
    (6) From subsection (e)(4)(I), to the extent that this subsection 
is interpreted to require more detail regarding the record sources in 
this system than has already been published in the Federal Register 
through the SORN documentation. Should the subsection be so 
interpreted, exemption from this provision is necessary to protect the 
sources of law enforcement and intelligence information and to protect 
the privacy and safety of witnesses and informants and others who 
provide information to the FBI.
    (7) From subsection (e)(5) because in the collection of information 
for authorized law enforcement and intelligence purposes it is often 
impossible to determine in advance what information is accurate, 
relevant, timely, and complete. With time, additional facts, or 
analysis, information may acquire new significance. The restrictions 
imposed by subsection (e)(5) would thus limit the ability of trained 
investigators and intelligence analysts to exercise their judgment in 
reporting on investigations and impede the development of criminal 
intelligence necessary for effective law enforcement. Although the FBI 
has claimed this exemption, it continuously works with its federal, 
state, local, tribal, and international partners to maintain the 
accuracy of records to the greatest extent practicable. The FBI does so 
with established policies and practices. The criminal justice and 
national security communities have a strong operational interest in 
using up-to-date and accurate records and will apply their own 
procedures and foster relationships with their partners to further this 
interest.

    Dated: April 2, 2018.
Peter A. Winn,
Acting Chief Privacy and Civil Liberties Officer.
[FR Doc. 2018-07056 Filed 4-5-18; 8:45 am]
 BILLING CODE 4410-02-P